UPDATE: I have expanded the content of this post into an essay that is available here.

This is the second in a series of posts on the Supreme Court's takings conference notes. My first post discussed the Court's conference notes in Hawaii Housing Authority v. Midkiff and their significance to the Court's recent decision in Kelo v. New London. All of the caveats noted in that post apply here as well.

This post is about Berman v. Parker, 348 U.S. 26 (1954), a blight-clearance case that established the legality of broad urban-renewal schemes. As suggested in my last post, Berman articulated a broad conception of public use and deference to the legislature that was very influential in shaping the Court's analysis in Midkiff and Kelo. For example, the Court wrote in Berman that:

Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation . . . . This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.

As I noted in my prior post on Midkiff, similarly broad language in that case was surprising in light of the remarks of some of the justices in conference that Midkiff was a narrow case and that the Court's opinion needed to be written carefully. In contrast, the conference notes for Berman indicate that the Court's broad language was deliberate and intended to repudiate the narrower conception of public use articulated in the opinion appealed to the Court.

The opinion that offended the Court was written by E. Barrett Prettyman, a respected D.C. Circuit judge sitting as part of a special three-member district court convened to hear a challenge to the constitutionality of the District of Columbia Redevelopment Act. As a side note of trivia, the D.C. Circuit now sits in a courthouse named after Judge Prettyman. Prior to reading the Berman conference notes, I had never read Judge Prettyman's opinion, though I had read Berman itself many times. I have to say that from a post-Kelo perspective, Prettyman's opinion comes as something of a revelation. It is thorough, thoughtful, and takes the concept of public use seriously. If you are interested in Kelo and the public use issue, it is well worth reading the opinion in its entirety. It is reported as Schneider v. District of Columbia, 117 F. Supp. 705 (D.D.C. 1953).

The key issue in Berman was the scope of government power to take property to clear blight and transfer the taken property to private developers. The plaintiffs in the case owned commercial property that was not itself blighted, but that was located in an area that contained a substantial amount of blighted property. Prettyman divided the issue into thee parts:

1. First, there is the slum. A slum is made up of houses (or substitutes for houses), the appurtenances thereto, and people. The houses and appurtenances are such that the people live in filth and breed disease and crime. A slum can be eliminated by tearing down the houses, destroying the appurtenances, and either building new housing on the spot for the people or moving the people away.

2. Second, there is the land upon which a slum exist. The land itself neither contributes to nor detracts from a slum. It is the same whether a slum or a model building exists upon it. The land cannot be destroyed or moved. Only its ownership and its use can be changed. If cleared, the land upon which a slum presently exists would have no harmful effects upon the public. Neither does naked ownership of land, apart from use, have any harmful public effects. A slum and the legal title to the naked land upon which it exists are separate things.

3. Third, there are sections of cities which are not at the present time used to their fullest economic possibility, or are not arranged to fit current ideas of city development. An outstanding example is Trinity Church and its surrounding cemetery at the corner of Wall Street and Broadway in New York City. Old streets are not so wide as new ones would be. Apartment houses would be more economically efficient than are single dwellings. Phrases used to describe this situation are 'inadequate planning of the area', 'excessive land coverage by the buildings thereon', 'defective design and arrangement of the buildings thereon', 'faulty street or lot layout', 'economically or socially undesirable land uses'. The statutes dealing with these areas are usually called 'urban redevelopment' laws. The areas are frequently called 'blighted'. They are in no sense slums, or similar to slums; they are out-of-date. They do not breed disease or crime; they fail to measure up to their maximum potential use in terms of economic, social, architectural, or civic desirability. These three distinct factual situations present three distinct sets of legal questions.

Prettyman had no difficulty with the first issue of whether the government could use eminent domain to clear slum property. Slum clearance could be seen as abatement of a public nuisance. "Since the Government can condemn such property without compensation under the police power, a fortiori it can condemn and pay reasonable compensation."

The power to clear the blighted property itself, however, left the second issue open: "Can the government seize title to land from which a slum has been or could be cleared, and sell it to a private person for private uses?" After all, once the blight is removed, what justifies taking the land? Prettyman eventually came to the conclusion that the government could take the underlying land, "provided (1) that the seizure of the title is necessary to the elimination of the slum or (2) that the proposed disposition of the title may reasonably be expected to prevent the otherwise probably development of a slum." He clearly stated, however, that "[o]rdinarily the seizure of the fee title to land would seem to be neither necessary nor reasonably incidental to the clearance of a slum." Prettyman also was clearly uncomfortable with the changing definition of public use embodied in the result of allowing fee title to be taken at all, noting that the "extensions of the concept of eminent domain, to encompass public purpose apart from public use, are potentially dangerous to basic principles of our system of government." And for Prettyman, the boundaries of the Constitutional scope of public use were for the courts to determine:

Whether the taking of a certain piece of property is necessary for a certain public use or purpose is initially and almost wholly a legislative question. But like every other legislative determination it is subject to the Constitution. Congress itself could not deprive a person of his property without due process of law. It is the duty of the courts, when a legislative act is challenged as violative of the Constitution, to determine that issue.

Prettyman then turned to the third issue: "the problem of the area which is not a slum but which is out-of-date, called by the Government 'blighted' or 'deteriorated'." Prettyman clearly stated that this type of taking would be unconstitutional, but read the Redevelopment Act narrowly as not permitting this type of taking. In light of Kelo, it is worth quoting from Prettyman's analysis at some length:

The hypothesis in the first phase of this consideration is an urban area which does not breed disease or crime, is not a slum. Its fault is that is fails to meet what are called modern standards. Let us suppose that it is backward, stagnant, not properly laid out, economically Eighteenth Century -- anything except detrimental to the health, safety or morals. Suppose its owners and occupants like it that way. Suppose they are often old-fashioned, prefer single-family dwellings, like small flower gardens, believe that a plot of ground is the place to rear children, prefer fresh to conditioned air, sun to fluorescent light. In many circles, all such views are considered 'backward and stagnant'. Are those who hold them 'therefore blighted'? Can they not, nevertheless, own property? . . .

Is a modern apartment house a better breeder of men than is the detached or row-house? Is the local corner grocer a less desirable community asset than the absentee stockholder in the national chain or the wage-paid manager? Are such questions as these to be decided by the Government? And, if the decisions be adverse to the erstwhile owners and occupants, is their entire right to own the property thereby destroyed? . . .

The terms 'public use' and 'public purpose' have never been defined with precision, and cannot be. Localities, customs and times change, and with them the needs of the public may change. But even the most liberal courts have put boundaries upon the meanings. . . .

We are of the opinion that Congress, in legislating for the District of Columbia, has no power to authorize the seizure by eminent domain of property for the sole purpose of redeveloping the area according to its, or its agents', judgment of what a well-developed, well-balanced neighborhood would be . . . .

Finally, Prettyman rejected the Government's argument that "if slums exist the Government may seize, redevelop and sell all the property in any area it may select as appropriate, so long as the area includes the slum area." This, Prettyman said, "amounts to a claim on the part of the authorities for unreviewable power to seize and sell whole sections of the city," and could not withstand Constitutional review.

All of this said, Prettyman construed the statute narrowly to avoid Constitutional problems, and granted the government's motion to dismiss with leave to the plaintiffs to amend. Thus, as the case came to the Supreme Court, the Redevelopment Act had been held to be Constitutional, but on narrow grounds.

The conference notes show that the Supreme Court wanted nothing to do with Prettyman's restrictive view of public use. Justice Douglas' notes have Chief Justice Warren's position as: "project is within the statute + is constitutional -- what they [the District of Columbia] did was reasonable -- he [the Chief Justice] would go further than the Ct. of Appeal [i.e., Prettyman sitting as part of the district court panel] which unduly restricted the Act -- affirm on broader ground than the ct of appeal." Justice Burton's notes also have Warren's position as "go beyond Court of Appeals." There are no remarks for any of the other justices beyond "agree with CJ" or "affirm and modify" in either Burton's or Douglas' notes.

The opinion in Berman was assigned to Douglas. A handwritten note dated November 12, 1954 from Burton to Douglas shows that Burton apparently felt that Douglas' first circulated draft did not go far enough in repudiating Prettyman's position:

Dear Bill,

While I believe I agree with the statements you make in the Redevelopment case it seems to me that the specific interpretations made by Prettyman will cause much trouble and confusion unless treated more specifically. Therefore, unless you or someone else does it, I shall probably want to attempt it in a concurrence. This means some delay.

HHB

Another memorandum indicates that Douglas' next draft was more to Burton's liking:

Dear Bill:

I appreciate the modifications in the recirculated opinion and see no adequate reason for me to write anything. Please include me in your "Court."

It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. . . .

The District Court indicated grave doubts concerning the Agency's right to take full title to the land as distinguished from the objectionable buildings located on it. We do not share those doubts.

The only concession to potential limits on legislative power was made in response to a suggestion by Chief Justice Warren, who asked Douglas to add "Subject to specific constitutional limitations" to the sentence quoted above that in the final opinion continues "when the legislature has spoken, public interest has been declared in terms well nigh conclusive." Obviously, the Court did not consider the public use clause to be a specific constitutional limitation.

As I mentioned in my last post on Midkiff, Justice O'Connor stated in her Kelo dissent that "There is a sense in which this troubling result follows from errant language in Berman and Midkiff", and O'Connor argued that the Court's broad language in Berman was not necessary to the result in that case. It is true that the Court did not need to use broad language in Berman. But there is nothing errant about the language. The Court in Berman was well aware of what it was doing: clearly and firmly getting the courts out of the business of reviewing issues of public use. Kelo is the logical consequence.

[Comments are open; comments need to be approved before they post, so there may be some delay]